Texas A&M Law Review
Texas A&M Law Review
Volume 7 Issue 2
February 2020
Constraining Strickland
Constraining Strickland
Michael Cicchini [email protected]
Follow this and additional works at: https://scholarship.law.tamu.edu/lawreview
Part of the Criminal Law Commons, Criminal Procedure Commons, and the Judges Commons
Recommended Citation Recommended Citation
Michael Cicchini, Constraining Strickland, 7 Tex. A&M L. Rev. 351 (2020). Available at: https://doi.org/10.37419/LR.V7.I2.2
By: Michael D. Cicchini*
When a convicted defendant pursues an ineffective assistance of counsel (“IAC”) claim on appeal—for example, by alleging that the defense lawyer failed to call an important witness at trial—the defendant must satisfy Strick-land’s two-part test. This requires a showing that (1) defense counsel per-formed deficiently, and (2) this deficient performance prejudiced the defendant’s case.
TheStrickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.
Strangely, however, courts have dramatically expanded Strickland’s two-part test beyond its original purpose. In addition to using it to analyze defense counsel’s performance, courts also use it to blame defense counsel for prosecutorial and judicial misconduct. When a prosecutor cheats or a judge is incompetent, courts turn Strickland’s two-part test on the defense lawyer to answer for the failure to object to the prosecutor’s misconduct or to educate the judge on the spot, in the middle of trial. Strickland, in effect, now requires the defense lawyer to do three jobs in one: his or her own, the prosecutor’s, and the judge’s.
This bizarre expansion of Strickland is not supported by law or logic, and it creates serious problems for defense lawyers. Further, by viewing acts of prosecutorial and judicial misconduct through Strickland’s lens—a frame-work that was never intended to protect prosecutors and judges from their own misdeeds—courts are also harming defendants’ chances on appeal and damaging the integrity of the criminal justice system.
This Article demonstrates how courts have improperly expanded Strick-land, explains the resulting harms, and advocates for clear, simple, and theo-retically sound legal reform. That is, courts must hold prosecutors and judges accountable for their own misconduct, rather than diverting blame to the de-fense lawyer through Strickland’s ill-suited IAC framework.
TABLE OF CONTENTS
I. INTRODUCTION. . . 352
II. STRICKLAND’S TWO-PART TEST. . . 354
III. THE BIZARRE EXPANSION OF STRICKLAND. . . 357
A. Judicial Misconduct. . . 358
B. Prosecutorial Misconduct . . . 359
* Criminal Defense Lawyer, Cicchini Law Office, LLC, Kenosha, Wisconsin. J.D.,summa cum laude, Marquette University Law School (1999); C.P.A., University of Illinois Board of Examiners (1997); M.B.A., Marquette University Graduate School (1994); B.S., University of Wisconsin—Parkside (1990). This Article was in-spired, rather belatedly, by my 2012 blog post on the same topic. See Michael D. Cicchini,The Criminal Defense Lawyer: Three Jobs in One, LEGAL WATCHDOG (Oct.
27, 2012), http://thelegalwatchdog.blogspot.com/2012/10/the-criminal-defense-lawyer-three-jobs.html [https://perma.cc/H8ER-LE8R]. Many thanks to attorney Cole Ruby for sharing his research, experience, and insights regarding the appellate process. Thanks also to attorneys Joseph Easton, Ellen Henak, Kathleen Quinn, and Christo-pher Rose for their comments.
351
IV. SQUARE PEGS, ROUND HOLE. . . 361
V. NATURAL CONSEQUENCES. . . 363
A. Harm to the Defendant . . . 364
B. Harm to the Defense Lawyer . . . 367
C. Harm to the System. . . 370
VI. LEGAL REFORM: ALLOCATING BLAME . . . 372
A. Using Plain Error. . . 372
B. Simplifying Strickland. . . 375
VII. THE BENEFITS OF REFORM . . . 379
VIII. CONCLUSION. . . 381
I. INTRODUCTION
The criminal defense lawyer’s job is, in many ways, incredibly diffi-cult. On a practical dimension, this is best illustrated by comparing the defense lawyer’s job to the prosecutor’s. On the day of trial, the prose-cutor will often marshal a small army to help convict the defendant. This prosecutorial support group may include an assigned victim-wit-ness coordinator to manage the state’s trial witvictim-wit-nesses, a paralegal on standby at the office to chase down missing items or conduct mid-trial research, an investigating police detective to sit second-chair and as-sist in all aspects of the trial,1 a government-paid expert witness to put the gloss of expertise on the prosecutor’s arguments,2 and sometimes even a prosecutor-in-chief—or, in less kind words, a biased judge—to help prosecute the state’s case from the bench.3
By comparison, many defense lawyers run a solo or small firm prac-tice, and their clients typically have little money for the attorney’s fees, let alone for expert witnesses and investigators. The idea of a witness coordinator, an on-call paralegal, or a second-chair at trial is almost unheard of. And even the most optimistic defense lawyer can only hope for an impartial application of the law, but certainly not
1. In my experience, prosecutors nearly always use a detective as “co-counsel” at trial, which courts routinely permit. SeeWIS. STAT. § 906.15(2)(b) (2018) (Exclusion
of witnesses from the courtroom during trial does not apply to “[a]n officer or em-ployee of a party which is not a natural person designated as its representative by its attorney.”).
2. For example, when a prosecutor contends that the timing or surrounding cir-cumstances of an allegation is evidence of its truthfulness, the prosecutor often calls an expert witness to bless this theory of the case. See, e.g., State v. Smith, 2016 WI App 8, ¶¶ 1–6, 366 Wis. 2d 613, 617–21, 874 N.W.2d 610, 611–13 (using a social worker as an expert witness to indirectly vouch for the complaining witness’s allegation).
3. Many trial court judges are effectively prosecutors in robes. One example is the trial judge who encouraged the prosecutor to object at various points during the trial, prompting defense counsel to ask, “Judge, do we have two prosecutors here?” Then, whenever the prosecutor would decline to object, the judge would simply “sus-tain objections never made . . . .” Johnson v. State, 722 A.2d 873, 877 (Md. 1999). For more examples of judges prosecuting from the bench, see Charles Sevilla, Protecting the Client, the Case and Yourself from an Unruly Jurist, CHAMPION, Aug. 2004, at 28;
pro-defense advocacy, from the bench. Things are even worse for the public-defender attorney, whom the government saddles with a stag-gering workload and virtually no trial resources. One such defender laments, “We have only nine investigators to handle more than 18,000 felony and misdemeanor cases each year.”4
Despite this uneven playing field, the criminal defense lawyer must pursue a legally sound theory of the client’s case and adequately per-form at all phases of trial. Committing a misstep in the trial-prepara-tion stage, the jury selectrial-prepara-tion process, opening statements, cross- or direct-examination, the jury-instruction conference, or closing argu-ments could subject the lawyer to the defendant’s subsequent claim of ineffective assistance of counsel (“IAC”).5 This Sixth Amendment claim is based on, and often accompanied by, a claim that defense counsel violated his or her ethical duties of competence and diligence, among other obligations.6
As bleak as this picture is, however, it fails to adequately capture the true difficulty of the defense lawyer’s job. In addition to advocat-ing for the client, defense counsel must also monitor the prosecutor and simultaneously perform the role of trial judge. Essentially, the de-fense lawyer must perform three jobs in one. For example, counsel’s failure to immediately object to, and then instantly formulate and re-quest a remedy for, the prosecutor’s intentional misconduct at trial will normally subject the defense lawyer to an IAC claim.7 Similarly, counsel’s failure to call immediate attention to the trial judge’s errors, and then educate the judge on the spot about the applicable law and how to rule, will also subject the defense lawyer to claims of ineffectiveness.8
Holding the defense lawyer accountable for the prosecutor’s and judge’s misconduct is a philosophically flawed approach, detached from law and logic.9 Further, this approach creates serious problems for defense counsel,10 makes it more difficult for the defendant to ob-tain post-conviction relief for prosecutorial and judicial misconduct,11 and creates perverse incentives for prosecutors and judges which, in
4. Tina Peng, I’m a Public Defender. It’s Impossible for Me to Do a Good Job Representing My Clients, WASH. POST (Sept. 3, 2015), https://www.washington
post.com/opinions/our-public-defender-system-isnt-just-broken—its-unconstitutional/ 2015/09/03/aadf2b6c-519b-11e5-9812-92d5948a40f8_story.html?utm_term=.11f450287 6e7 [https://perma.cc/9XG8-5QRX].
5. See infra Part II; see also Steven Gard, Ineffective Assistance of Counsel—Stan-dards and Remedies, 41 MO. L. REV. 483, 488–92 (1976) (discussing examples of
inef-fective assistance at numerous stages of the trial process).
6. See MODEL RULES OF PROF’L CONDUCT r. 1.1, 1.3 (AM. BAR ASS’N 2016).
These rules are typically adopted, often verbatim, by state supreme courts. 7. See infra Section III.B.
turn, negatively impact the integrity of the criminal justice system.12 Consequently, this Article advocates for clear, simple, and logical le-gal reform to correct this deeply flawed approach and the very serious problems it has created.13
Part II identifies the Strickland two-part test that governs defend-ants’ post-conviction IAC claims. In order to win a new trial, the de-fendant must show that counsel performed deficiently (for example, by failing to call a defense witness) and that such deficiency prejudiced the case.14 Part III then demonstrates how courts have greatly expanded this Strickland test. It is now commonly used to hold defense counsel responsible not only for his or her own performance, but also for failing to monitor the prosecutor and educate the judge during trial.
Part IV explains how filtering prosecutorial and judicial misconduct through Strickland’s IAC framework is completely unjustified by the facts, holding, and legal theory of Strickland. Part V then demon-strates the harm to defendants, defense lawyers, and the criminal jus-tice system when Strickland is used to blame defense counsel for the actions of unethical prosecutors and judges.
Part VI advocates for a clear, simple, and theoretically sound ap-proach to defendants’ IAC claims when such claims are based on acts of prosecutorial and judicial misconduct. The government’s misdeeds shouldnot be filtered through Strickland’s two-part test. Instead, they should be analyzed directly, based on the prosecutor’s and judge’s own ethical rules and constitutional obligations to the defendant. Fi-nally, Part VII explains the tremendous benefits that would flow from this proposed legal reform.
II. STRICKLAND’S TWO-PART TEST
The Sixth Amendment guarantees that every person charged with a crime receives the effective assistance of counsel in his or her de-fense.15 The landmark case on point—the case that is cited every day
12. See infra Section V.C. 13. See infra Parts VI & VII.
14. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
15. U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel for his defense.”). Further, “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added). For the history and development of the right, see Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 NEB. L. REV. 425, 428–40 (1996); Sara Mayeux,
Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel, 99 IOWA L. REV. 2161 (2014) (discussing the
in post-conviction and appellate decisions throughout the country—is
Strickland v. Washington.16 In Strickland, the defendant alleged that he received ineffective assistance at the sentencing phase of his case.17 In deciding whether defense counsel was ineffective, the Court an-nounced its now-famous two-part test:
First, the defendant must show that counsel’s performance was defi-cient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defen-dant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudicedthe defense. This requires showing that counsel’s errors were so serious as to deprive the de-fendant of a fair trial, a trial whose result is reliable. Unless a defen-dant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable.18
With regard to the first prong, what constitutes deficient perform-ance depends upon the facts of the particular case and the prevailing norms of professional practice.19 These prevailing norms are often found in attorney ethics rules and practice guides, such as “The De-fense Function” in the ABA Standards for Criminal Justice.20
For example, attorney ethics rules require defense counsel to main-tain competence in the law,21 to act diligently on the client’s behalf,22 and to avoid conflicts of interest when representing the client.23 The ABA guidelines are more specific. With regard to the ethical duty of diligence, for example, the guideline identifies and explains defense
U. ARK. LITTLE ROCK L. REV. 149, 153–65 (2005) (discussing the history of IAC from
early English common law through Nixon). 16. Strickland, 466 U.S. at 668.
17. Id. at 675–76.
18. Id.at 687 (emphasis added).
19. Sometimes, however, an attorney’s ineffectiveness is caused by the system in which he or she works, which is often the case with state-funded public defender pro-grams and private bar appointments for the indigent. For numerous examples of such systemic problems that result in IAC through no fault of the individual defense law-yer, see Laurence A. Benner, Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California, 45 CAL. W. L. REV. 263 (2009);
Richard Klein, The Constitutionalizing of Ineffective Assistance of Counsel, 58 MD. L.
REV. 1433, 1452 (1999).
20. Strickland, 466 U.S. at 688.
21. See, e.g., WIS. SUP. CT. R. 20:1.1 (“Competent representation requires the
le-gal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).
22. See id. R. 20:1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
23. See id. R. 20:1.7 (“[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”). Conflicts of interest can arise in peculiar circumstances.See Veronica J. Finkelstein, Better Not Call Saul: The Impact of Crimi-nal Attorneys on Their Clients’ Sixth Amendment Right to Effective Assistance of Counsel, 83 U. CIN. L. REV. 1215 (2015) (discussing counsel’s conflict of interest when
counsel’s duties to investigate the case,24 to keep the client in-formed,25 and to follow discovery procedures,26 among other obligations.
In Strickland, the defendant–respondent alleged that his counsel failed to act diligently and perform competently at the sentencing hearing.27 More specifically:
Respondent challenged counsel’s assistance in six respects. He as-serted that counsel was ineffective because he failed to move for a continuance to prepare for sentencing, to request a psychiatric re-port, to investigate and present character witnesses, to seek a presentence investigation report, to present meaningful arguments to the sentencing judge, and to investigate the medical examiner’s reports or cross-examine the medical experts.28
The Court analyzed the facts of the case—including what counsel did and did not do and why he acted or refrained from acting—and concluded that “[c]ounsel’s strategy choice was well within the range of professionally reasonable judgments . . . .”29 The defendant’s failure on this first prong—whether counsel’s performance was deficient— doomed his IAC claim.30 Nonetheless, the Court went on to analyze the second prong.
The Court held, “With respect to the prejudice component, the lack of merit of respondent’s claim is even more stark. The evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile.”31 Worse yet, with regard to the pre-sentence investigation and psychological reports the defendant–respondent said counsel should have obtained, “admission of the evidence respondent now offers might even have been harmful to his case . . . .”32
Strickland’s two-part test is very difficult for the defendant to sat-isfy. First, when determining whether defense counsel’s performance was deficient, “[j]udicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence . . . .”33
24. ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND D E-FENSE FUNCTION, Standard 4-4.1 (AM. BAR ASS’N 1993) https://www.americanbar
.org/content/dam/aba/publications/criminal_justice_standards/prosecution_defense_ function.pdf [https://perma.cc/76Q4-A2ZX].
25. Id. Standard 4-2.1. 26. Id. Standard 4-4.5.
27. Strickland v. Washington, 466 U.S. 668, 675 (1984). 28. Id.
29. Id. at 699. 30. Id. at 700.
31. Id. at 699–700 (emphasis added). 32. Id. at 700.
And second, because counsel has to make numerous strategic deci-sions before, during, and even after trial (in cases where there is a conviction), every case will inevitably involve some sort of misstep or sub-optimal decision. Therefore, the court must also find resulting
prejudice before counsel can be branded as ineffective.34
Unfortunately, Strickland’s theoretical soundness was soon de-stroyed in practice. As the next Part explains, courts dramatically ex-panded Strickland’s application in ways that are not only unjustified, but harmful.
III. THE BIZARRE EXPANSION OF STRICKLAND
As discussed above, Strickland’s two-part test was designed for cases where defense counsel allegedly did or failed to do something, thus placing his or her performance outside the range of prevailing norms as dictated by ethics rules and other performance standards. Despite this, and rather bizarrely, courts now routinely apply Strick-land to shift blame to defense counsel for prosecutorial and even judi-cial misconduct—two things for which the Strickland test was never intended and is ill-suited to do.35
This broad application of Strickland results in courts finding defense lawyers ineffective based on “claims that [have] little to do with whether or not defense counsel was deficient in the performance of his or her duties.”36 This unfortunate and harmful trend has made “defense counsel the ultimate gatekeeper of all error at the trial level.”37 That is, “Errors of all parties to a criminal trial [are] attributa-ble to defense counsel . . . .”38
For our purposes, “errors” mean judicial and prosecutorial miscon-duct. Misconduct is defined as the violation of an ethical duty which,
516–17 (2009) (“For many years under Strickland, the Court . . . refused to hold de-fense attorneys to the minimum standards of conduct prescribed by the legal profes-sion, and blindly deferred to strategic and tactical decisions by counsel.”).
34. Strickland, 466 U.S. at 687. However, not all forms of IAC claims require a showing of prejudice. See Kirchmeier, supra note 15, at 427 (“Courts have not re-quired defendants to make the Strickland showing of prejudice . . . where defense counsel was not licensed to practice law, where counsel’s performance or behavior was extremely egregious, or where counsel had a conflict of interest.”).
35. See infra Part IV.
36. Jon M. Woodruff, Note, Plain Error by Another Name: Are Ineffective Assis-tance of Counsel Claims a Suitable Alternative to Plain Error Review in Iowa?, 102 IOWA L. REV. 1811, 1820 (2017). Woodruff’s note specifically refers to Iowa’s refusal
to adopt a plain error standard for cases where defense counsel did not object to trial errors, including judicial errors and prosecutorial misconduct. However, the same rea-soning also applies in states where plain error review is available but more difficult to satisfy than Strickland’s prejudice prong. See infra Section V.A. of this Article for further discussion of the incentives behind this blame-shifting to defense counsel.
37. Woodruff, supra note 36, at 1835 (discussing Iowa’s refusal to adopt a plain error standard for cases where defense counsel failed to object at trial, no matter how justifiable the reason for failing to do so).
in turn, violates the defendant’s rights. Because judges have an ethical duty to be competent in the law, judicial misconduct also includes in-competence.39 The following two Sections provide an example of each form of misconduct (judicial and prosecutorial) and explain how de-fense lawyers are left “holding the bag” for the government’s failures.
A. Judicial Misconduct
Harris v. Thompson provides an example of a defense lawyer being held accountable for judicial misconduct when the defense lawyer at-tempted to call as a witness a six-year-old child, Diante, who was an eyewitness to the alleged crime.40 Diante was also on the prosecutor’s witness list; however, upon realizing that Diante may actually hurt the government’s case, the prosecutor craftily “moved to disqualify him as incompetent to testify.”41
Upon learning of this abrupt change in position, the trial judge
should have instantly put the prosecutor on the spot by asking: “What did you learn between the date you filed your witness list and today that now leads you to assert that Diante is incompetent to testify?” Instead, the trial judge decided to hold a hearing so the defense could demonstrate Diante’s competence.42
At the hearing, the defense appeared to meet the burden the trial judge placed on it.43 Nonetheless, after the defense lawyer established Diante’s competency, the judge condescendingly stated that “[d]efense counsel misperceives what the issue is with regard to wit-ness competency . . . .”44 The judge then determined that Diante was
not competent to testify, thus leaving the defense unable to call the only eyewitness to the alleged crime.45
In reality, it turned out to be the trial judge who “misperceive[d] what the issue [was] with regard to witness competency.”46 Contrary to the judge’s over-confident declaration, the applicable trial rule ac-tually presumes competency and places the burden “on the party op-posing competency” to demonstrate incompetence.47 Ironically, it was the judge who was incompetent in the law, thus violating the ethics rule that “[a] judge shall perform judicial and administrative duties,
competently and diligently.”48 And while demonstrating his own
igno-39. MODEL CODE OF JUDICIAL CONDUCT r. 2.5(A) (AM. BAR ASS’N 2007).
40. Harris v. Thompson, 698 F.3d 609, 612 (7th Cir. 2012). 41. Id.at 616.
42. Id. (“[T]he Defense, it’s their witness whom they’re attempting to call. They shall bear the burden of proof in demonstrating Diante’s competency.”)
43. See id. at 620. 44. Id.
45. Id.at 620–21 (emphasis added). 46. Id. at 620.
47. Id. at 613 (emphasis added).
48. MODEL CODE OF JUDICIAL CONDUCT r. 2.5(A) (AM. BAR ASS’N 2007)
rance, the judge also violated the defendant’s constitutional rights, in-cluding the right to call witnesses and to present a defense.49
Even though the defense lawyer performed his duties effectively by identifying and attempting to call the relevant witness, and despite the trial judge’s “glaring failure at the competency hearing,”50 the appel-late court nonetheless turned the Strickland standard on defense counsel.51 The court then blamed counsel “for the failure to correct the
judge’s mistake,” thus branding the defense lawyer deficient and, due to the resulting prejudice to the defendant, constitutionally ineffective.52
More specifically, the court held that if counsel had properly moni-tored the trial judge and done his job for him, “it is reasonably likely that Diante would have been allowed to testify.”53 Amazingly, the court reached this conclusion even though the trial judge had already conceded, with surprising candor: “I found Diante not competent to testify, and that would have been . . . my finding regardless of whether I had articulated the correct burden of proof.”54
Not only was the trial judge wrong about the law—and wrong again when he finally applied the correct law to the facts of the case—but he also made it perfectly clear that his errors were immune to correc-tion.55 Nonetheless, the appellate court declared that this was all de-fense counsel’s fault.56 The defense lawyer was therefore held accountable and the trial judge suffered no consequence for his failure to understand, and to apply in good faith, incredibly basic procedural law that constitutes an essential part of the judge’s job.
B. Prosecutorial Misconduct
Shifting gears from judicial to prosecutorial misconduct, an example of a defense lawyer being held to answer for a prosecutor’s misdeeds can be found in Jordan v. Hepp, in which the jury’s verdict was likely to hinge on its determination of witness credibility.57 Understanding this, the prosecutor made the following argument to the jury:
Now, the big question here is the credibility. Who do you believe? . . . Somebody’s lying. Who is it? [The detective’s] going to put her whole career and her future on the line for this case? She does this everyday. She’s investigating homicide cases everyday for years.
49. See U.S. CONST. amend. VI.
50. Harris v. Thompson, 698 F.3d 609, 637 (7th Cir. 2012). 51. Id. at 639.
52. Id. at 644 (emphasis added). 53. Id. at 640.
54. Id. at 621 (emphasis added). 55. See id. at 621.
56. See id. at 650.
Who has the most to lose based on your verdict in this case? Her or him?58
The prosecutor’s argument “is a textbook case of improper vouch-ing.”59 That is, “By arguing that the detective would lose her job by giving false testimony, the prosecutor ‘convey[ed] the impression that evidence not known to the jury’—namely, that the detective would face career repercussions for false testimony—‘supports the charges against the defendant.’”60 In other words, “The prosecutor relied on evidencenot in the record but that appeared to be within his personal knowledge: that the detective would lose her job if she wasn’t telling the truth.”61
Admittedly, relative to other forms of improper prosecutorial argu-ment, vouching falls near the mild end of the spectrum.62 Nonetheless, it is a clear violation of black-letter law, and the prosecutor who makes this argument violates his or her ethical duty as “minister of justice,”63 among other ethical duties.64 This, in turn, violates the de-fendant’s constitutional rights:
Due process . . . forbids a prosecutor to urge a jury to rely on evi-dence that is not in the record, whether that evievi-dence is from news-paper accounts, the Internet, or the prosecutor’s own mouth. It requires the jury to be left alone to do its own job, evaluating the evidence the trial judge admitted, and coming to its own indepen-dent conclusion (as opposed to one dictated by the prosecutor).65 What, then, did the court do when faced with this issue on appeal? It immediately pivoted to the defense lawyer and even identified him, but not the unethical prosecutor, by name: “In Jordan’s trial, Bohach failed to object to any of the prosecutor’s improper statements. Our first question is whether that failure rendered his performance ineffec-tive under Strickland.”66
Under basic principles of logic and fairness, the prosecutor should be held to answer for his or her own ethical violations. Nonetheless, a court, once again, placed the defense lawyer in its crosshairs for a gov-ernment agent’s misconduct. The prosecutor violated well-established
58. Id.at 847. 59. Id. 60. Id.
61. Id. at 847–48 (emphasis added).
62. See Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Ar-guments, 70 OKLA. L. REV. 887, 896–912 (2018) (discussing ten different types of
im-proper arguments).
63. MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS’N 2017)
(“This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice”).
64. Id.at r. 3.4(e) (“A lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to . . . the credibility of a witness . . . or the guilt or innocence of an accused . . . .”).
law to win a conviction by improper means. However, it was the de-fense lawyer, not the prosecutor, who was called out by name and told to account for his alleged deficiencies in the courtroom: namely, the failure to immediately, on the spot and in the middle of trial, identify, object to, and formulate and request a remedy for the prosecutor’s unethical tactics.67
IV. SQUARE PEGS, ROUND HOLE
Prosecutors and judges commit misconduct, in countless variations, every day in our state and federal criminal courts. The precise form of the misconduct will change from case to case and ranges from incom-petence to blatant, intentional wrongdoing. However, in nearly all cases, it is the defense lawyer who will be blamed for failing to moni-tor the prosecumoni-tor and perform the trial judge’s job—all while simulta-neously fulfilling counsel’s own ethical and professional obligations. This blame-shifting tactic can produce “absurd findings of constitu-tionally inadequate representation” by defense counsel, especially when the judge’s or prosecutor’s misconduct (for which counsel is blamed) is extreme.68
For example, when a trial judge “made inappropriate comments and threats and assessed repeated fines” against defense counsel in front of the jury and then actively “limited the defense’s ability to pre-sent a case,” the defense lawyer was still potentially on the hook “be-cause he did not object to the judge’s comments or move for a mistrial.”69 Similarly, a prosecutor “attacked defense counsel in clos-ing argument, callclos-ing his openclos-ing statement ‘a whole-hearted fabrication’ and saying either defense counsel ‘flat out lied to you’ in opening or [the defendant] lied on the stand: ‘Either way, I wouldn’t believe either of them as far as I can throw them.’”70 Despite the prosecutor’s gross misconduct, the first question in the appellate court’s analysis was this: Did defense counsel “object to the prosecu-tor’s closing”?71
While such blame-shifting is maddening to the defense lawyer, it is highly beneficial to the prosecutor and judge. Much to their delight, the courts’ use of Strickland’s IAC framework completely relieves
67. Id. at 849–50 (The court remanded the case, thirteen years after the trial, for the defense lawyer to explain whether he had “a strategic reason for his failure to object to the [prosecutor’s] vouching.”).
68. Woodruff, supra note 36, at 1812–13 (discussing absurd findings of deficient performance by defense counsel in cases where courts abuse the IAC framework).
69. Oade v. State, 960 P.2d 336, 338 (Nev. 1998).
70. Improper Closing Argument Earns Prosecutor an OLR Referral, but Doesn’t Get Defendant a New Trial, ON POINT (Sept. 24, 2014), http://www.wisconsinappeals
.net/on-point-by-the-wisconsin-state-public-defender/improper-closing-argument-earns-prosecutor-an-olr-referral-but-doesnt-get-defendant-a-new-trial/ [https://perma .cc/4A3N-K4ZC].
these government agents of their own ethical obligations.72 However, using Strickland under these circumstances is like trying to jam two square pegs into a round hole. Strickland simply was not designed for prosecutorial and judicial misconduct. This is obvious for at least four reasons.
First, the facts of Strickland involve defense counsel’s alleged failure to fulfill counsel’s own obligations under the applicable ethics rules, the prevailing standards of practice, and the Sixth Amendment.73
Strickland does not involve counsel’s alleged failure to monitor the prosecutor or educate the trial judge, nor does it involve counsel’s al-leged failure to ensure that these two government agents comply with their own ethics rules, professional standards, and constitutional obligations.74
Second, the sources cited in Strickland—the ethics rules and ABA practice standards—once again do not address defense counsel’s sup-posed duty to monitor or otherwise referee the presumably competent and impartial magistrate (the trial judge) or the so-called minister of justice (the prosecutor).75
Third, the pre-Strickland history of IAC cases does not impose a burden on defense counsel to ensure that the prosecutor and judge follow the law.76 In fact, these pre-Strickland cases drew “a fundamen-tal distinction between incompetence claims . . . and outside interfer-ence claims” where the problem was caused by the government’s action rather than defense counsel’s acts or omissions.77
72. See Woodruff, supra note 36, at 1835–36 (discussing how Iowa’s refusal to con-front prosecutorial and judicial misconduct not objected to at trial, except through the IAC framework, “ignores the important responsibilities borne by the court and the prosecution”).
73. Strickland was recently expanded to include defense counsel’s performance during the pretrial stages of the criminal process, including plea bargaining. See Justin F. Marceau, Embracing a New Era of Ineffective Assistance of Counsel, 14 U. PA. J.
CONST. L. 1161, 1189–90 (2012). It has long applied, of course, to other pretrial
obli-gations.See Jenny Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 FORDHAM URB. L.J.
1097, 1108–09 (2004).
74. See Woodruff, supra note 36, at 1835 (arguing, in the context of Iowa’s refusal to adopt the plain error doctrine, that “there are a number of conceivable errors aris-ing from attorney or judicial conduct that would (or should) be difficult to shoehorn into an [IAC] appeal, because they do not implicate a defendant’s Sixth Amendment right to counsel”).
75. See WIS. SUP. CT. R. 20:1.1, 20:1.3, 20:1.7 (on ethics rules). SeeABA S TAN-DARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION,
Standards 4-4.1, 4-2.1, 4-4.5 (AM. BAR ASS’N 1993), https://www.americanbar.org/con
tent/dam/aba/publications/criminal_justice_standards/prosecution_defense_function .pdf [https://perma.cc/76Q4-A2ZX] (on practice standards).
76. See generally Mayeux, supra note 15 (discussing the history and origin of mod-ern IAC law which is rooted in defense counsel’s failure to perform his or her ethical obligations, not in prosecutorial cheating or judicial bias or incompetence).
Fourth, and most significantly, the Strickland test is intentionally difficult for the defendant to satisfy, thus making it difficult for him or her to win a new trial.78 This is because “[t]he government is not
re-sponsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence.”79 Strickland’s difficult-to-satisfy test therefore ensures that prosecutors and judges are not constantly retrying cases due to defense counsel’s errors—something that is completely outside the government’s control.
However, that same reasoning mandates that Strickland not apply to instances of prosecutorial and judicial misconduct—actions that are
within the government’s control. With regard to a prosecutor’s mis-conduct, “because the prosecution is directly responsible” for it, such misconduct is “easy for the government to prevent.”80 The govern-ment, therefore, must not be allowed to use Strickland to protect the prosecution from itself. In cases of judicial misconduct, the Strickland
test is a horrible fit for the same reason: the government must not be allowed to use Strickland to protect the judge from his or her own incompetence, bias, or other misconduct—things for which the judge is responsible and, therefore, can prevent.
Despite this, whenever a prosecutor or judge breaks the rules—in-cluding well-established legal principles and even their own ethics rules—thus violating the defendant’s constitutional rights, the appel-late courts routinely turn to Strickland’s two-part test.81 This ensures that blame for the prosecutor’s or judge’s misconduct shifts to defense counsel. In short, the courts’ use of the Strickland standard means that the defense lawyer must literally do three jobs in one: his or her own, the prosecutor’s, and the judge’s.
This raises the following question: As long as the defendant gets his kick at a post-conviction cat—some cat, any cat—who cares whether the prosecutor, the judge, or the defense lawyer is held to answer for the misconduct at trial?
V. NATURAL CONSEQUENCES
The answer to the above question—who cares?—is that the defen-dant cares, the defense lawyer cares, and those interested in the integ-rity of the criminal justice system care. The practice of cramming acts of prosecutorial and judicial misconduct through Strickland’s IAC
fil-which the trial judge committed misconduct that interfered with defense counsel’s performance).
78. See Kirchmeier, supra note 15, at 438–39 (describing the Strickland hurdle as “insurmountable” for the defendant).
79. Strickland v. Washington, 466 U.S. 668, 693 (1984) (emphasis added). 80. Id. at 692.
ter “is ill-conceived and negatively impacts defense counsel, defend-ants, and [the] judicial system in general.”82
A. Harm to the Defendant
When the defendant’s appellate lawyer files a post-conviction mo-tion or appeal alleging IAC for counsel’s failure to monitor the prose-cutor or educate the judge, the defendant suffers great harm. One reason is that, as explained earlier, the Strickland two-part test was intentionally designed to be difficult for the defendant to satisfy.83 The reason is that the test is supposed to apply only to defense counsel’s errors, thus protecting prosecutors and judges from having to retry cases based on errors completely out of their control.84
In fact, the test is so tough to satisfy that defendants rarely get past the first prong on deficient performance.85 Without deficient perform-ance, of course, there can be no violation of the Sixth Amendment right to the effective assistance of counsel, and the defendant’s IAC post-conviction motion or appeal necessarily fails.86
For example, assume that the defendant’s appellate lawyer alleges IAC for defense counsel’s failure to object to the prosecutor’s im-proper closing argument. Under the first prong, the court must give great deference to counsel’s judgment and decision-making at that point in time.87 As long as the defense lawyer had a reason for not objecting, the court will accept that reason and will not find deficient
82. Id.at 1832 (discussing Iowa’s failure to adopt the plain error standard and its use of Strickland’s IAC framework for matters unrelated to defense counsel’s per-formance). Woodruff identifies an even more harmful effect—an effect beyond the scope of this Article—of overusing Strickland’s IAC framework: “These [Iowa] cases require that trial counsel object based not only on what the law was at the time of the trial, but to accurately predict future developments in the law and to object at trial based on this knowledge of future events.” Id.
83. SeeKirchmeier,supra note 15, at 438–39. 84. Strickland, 466 U.S. at 693.
85. See Mayeux, supra note 15, at 2162 (“Although rarely successful, IAC claims now comprise the majority of challenges to criminal convictions in the United States.”) (footnote omitted) (citing numerous sources including state and federal sta-tistics); Williams, supra note 15, at 168–69 (“The United States Supreme Court has stated that a defense counsel’s performance is not deficient if it falls within ‘the wide range of reasonable professional assistance.’ . . . The Nixon decision goes one step further in widening what the courts can determine to be reasonable assistance.”).
86. Even when courts find deficient performance, they will often go out of their way to avoid finding prejudice to the defendant’s case. See Stephanos Bibas, The Psy-chology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 1 UTAH L. REV. 1, 1 (2004) (“Courts rarely reverse convictions for [IAC], even if the
defendant’s lawyer was asleep, drunk, unprepared, or unknowledgeable.”) (citing, among other sources, Kirchmeier, supra note 15, at 426–27.).
performance. And in reality, there is nearly always a reason for coun-sel’s failure to object to the prosecutor’s improper closing argument.88
[T]he conventional wisdom within the field of trial advocacy is that attorneys should not object during closing arguments “unless things are terrible” . . . . [C]ounsel may be concerned about irritating the judge or jury by interrupting opposing counsel, which can heighten jurors’ general tendencies to favor prosecutors over defense coun-sel. More specifically, defense counsel may be concerned about the jury’s likely reaction if her objection is overruled. A trial court deci-sion to overrule an objection . . . may actually encourage the jury to rely on those comments.89
Additionally, even if the defense lawyer wants to object, doing so is not easy. While a prosecutor may put a great deal of forethought into an improper closing argument, such cheating often surprises defense counsel in the heat of battle. It is “difficult for defense counsel to quickly identify the problem and raise an objection in seconds at trial. Even if defense counsel is troubled by the prosecutor’s comments, these conditions make it difficult for defense counsel to articulate their objections quickly.”90
The risk and difficulty of objecting serves as a built-in reason for courts to deny IAC claims when such claims are rooted in the prosecu-tor’s misconduct. This means that, under Strickland’s IAC framework, because the defense lawyer acted within the very wide range of pro-fessional norms, his or her snap decision-making at trial cannot be deemed deficient (Strickland’s first prong). As a result, the defen-dant’s IAC claim fails, no matter how harmful the prosecutor’s mis-conduct was to the case (Strickland’s second prong, which the appellate court rarely reaches).
While it is difficult and risky for defense counsel to object to a pros-ecutor’s misconduct, the levels of difficulty and risk are even greater when correcting a judge in front of the jury for his or her bias, incom-petence, or other forms of misconduct. Defense lawyers “are, under-standably, loath to challenge the propriety of a trial judge’s utterances, for fear of antagonizing him and thereby prejudicing a cli-ent’s case.”91 Once again, this legitimate, built-in reason for not
ob-88. This is true with regard to most IAC claims. See Klein, supra note 19, at 1459 (“Can’tevery decision that an attorney makes be characterized as part of the lawyer’s strategy?”).
89. Mary Nicol Bowman, Mitigating Foul Blows, 49 GA. L. REV. 309, 357 (2015)
(footnotes omitted). The defense lawyer’s concern about drawing further attention to objectionable information is supported by empirical evidence. See Shari S. Diamond et al., The “Kettleful of Law” in Real Jury Deliberations: Successes, Failures, and Next Steps, 106 NW. U. L. REV. 1537, 1592 (2012) (discussing and citing an empirical study
on the effect of overruled objections).
90. Bowman, supra note 89, at 356 (footnote omitted).
jecting essentially dooms any IAC claim before the appellate court even gets to Strickland’s second prong.
Given the near impossibility of satisfying Strickland’s first prong, why doesn’t the defendant’s appellate lawyer simply go after the of-fending prosecutor or judge directly, instead of targeting defense counsel with Strickland’s IAC framework? As explained in Section VI.A. of this Article, this could be the better route, depending on the particular state’s law. However, the appellate lawyer’s concern is this: when he or she bypasses the defense lawyer and goes after the offend-ing prosecutor or judge directly, the “plain error” doctrine may be invoked.92
The potential problem is that the plain error doctrine could, at least
in theory, be more difficult for a defendant to satisfy than Strickland’s second (prejudice) prong.93 (That will not matter, of course, if the de-fendant cannot get past Strickland’s first prong.) But in practice, these different standards—Strickland’s prejudice prong and plain error— are probably distinctions without a difference. In reality, courts often reach their predetermined conclusion to affirm the defendant’s con-viction and then merely parrot the legal standard after the fact.94
Much like Strickland’s prejudice prong, plain error tests are worded rather ominously. One author framed the test this way: “[R]eversal on appeal will only occur if” the government’s misconduct “seriously af-fected the fairness, integrity, or public reputation of the proceed-ing.”95 Other courts have held that “the plain error standard
92. Nearly all states use the plain error doctrine. For the history and purpose of the doctrine, see Woodruff, supra note 36, at 1813–18.
93. This is not always the case, however, as some plain error tests appear easier for the defendant to satisfy. See id. at 1817 (discussing the Illinois plain error framework which can be satisfied by showing either (1) any severity of error in a close case or (2) a serious error regardless of the strength of the state’s case). See also infra Section VI.A. for further discussion of plain error.
94. In what should be embarrassing to the courts, they are often in such a rush to affirm the conviction that they will even parrot the wrong legal standard. This is true not only in the IAC context, but in other contexts as well. See, e.g., Jensen v. Cle-ments, 800 F.3d 892, 903–04 (7th Cir. 2015) (“Despite this long line of cases establish-ing the test for harmless error, the Wisconsin appellate court’s reasonestablish-ing reads as though it is conducting an evaluation of whether there was sufficient evidence to sup-port the verdict, not whether the error in admitting [evidence] affected the jury’s ver-dict. . . . That is very different than the harmless error test under clearly established Supreme Court law.”) (emphasis added) (granting the defendant’s petition for a new trial due to appellate court’s application of the wrong test); State v. Knapp, 2010 WI App 71, ¶ 5, 325 Wis. 2d 402, 786 N.W.2d 489 (“Knapp argues that the trial court erroneously exercised its discretion in denying his motion for a mistrial by deciding it under the ‘manifest necessity’ standard. Knapp is correct that the court erred . . . . In addressing Knapp’s motion, the court should have determined whether alleged error wassufficiently prejudicial to warrant a mistrial.”) (emphasis added) (affirming the outcome despite trial court’s application of the wrong test).
95. Anthony Flores, You Can’t Say That, or Maybe You Can: An Analysis of Michigan Prosecutor Closing Argument Law, 88 U. DET. MERCY L. REV. 273, 283
additionally requires that [the defendant] ‘establish not only that the [government misconduct] denied him a fair trial, but also that the out-come of the proceedings would have been different absent the [mis-conduct].’”96 Yet other courts require the defendant to leap a bizarre hurdle of demonstrating that the government’s misconduct was some-how unusual, as “[p]lain error review is ordinarily limited to ‘block-busters’ and does not ‘consider the ordinary backfires—whether or not harmful to a litigant’s cause—which may mar a trial record.’”97
Quite to the client’s detriment, then, defense counsel must perform his or her own duties at trial while simultaneously monitoring the prosecutor and educating the trial judge. Counsel’s failure to do all three jobs at once will invoke Strickland or, in the alternative, the plain error test—both of which make it incredibly difficult for the de-fendant to obtain a new trial.98
B. Harm to the Defense Lawyer
Holding defense counsel responsible for the prosecutor’s and judge’s performance makes the defense lawyer’s job exponentially more difficult than it already is. As explained in Part I, the criminal process is stacked heavily in favor of the state to begin with, and the defense lawyer must perform his or her own trial duties with little or no assistance and few resources. On top of this, doing the job of the prosecutor and the judge can be exhausting, if not impossible. Such responsibilities take up a tremendous amount of time and attention— both before and during trial—that could be better spent planning a defense and focusing on counsel’s own obligations.99
The preposterousness of this current state of affairs is best illus-trated by a sports analogy—nearly any sport will do. Simply put, no legitimate sport would ever implement a set of rules that required one of the teams, or one of the competitors in an individual sport, to (1) play the game and follow its rules, and (2) monitor and report the other team’s or player’s cheating, and (3) educate the referee by iden-tifying and correcting all of his or her errors.
A sport that employed this framework could not exist. Using Amer-ican football as an example, all it took was one missed pass-interfer-ence call by one referee in one playoff game to the detriment of one team to cause a league-wide uproar and subsequent off-season
96. United States v. Anderson, 303 F.3d 847, 854 (7th Cir. 2002) (internal citation omitted).
97. United States v. Roberts, 119 F.3d 1006, 1014 (1st Cir. 1997) (internal citation omitted).
98. See infra Section VI.A. for further discussion of the plain error test as an alter-native to Strickland’s IAC test.
changes in the rules.100 If only the criminal defense lawyer—who, in-stead of playing a game against other players on the football field, defends our liberties against government agents in the courtroom— could generate the same collective moral outrage.
In addition to increasing the difficulty of the defense lawyer’s job by outrageous proportions—something that also indirectly (if not di-rectly) harms the defendant’s chances of success at the jury trial—
Strickland’s focus on defense counsel instead of the offending govern-ment agents creates other, longer-lasting problems for the defense lawyer.
First, courts often take years to decide a defendant’s IAC claim.101 This means that, years after the prosecutor cheats or the judge fails to do his or her job at trial, the defense lawyer will likely have to prepare for and testify at the IAC hearing.102 This preparation will include lo-cating the client’s file, re-reading it and the trial transcript, and at-tempting to recall his or her decision-making process when failing to object to the government’s misconduct years earlier. Attempting to recreate such history takes an enormous amount of time—time that is uncompensated and can be better spent defending current clients.
As an example of the sheer absurdity of this burden, consider a case discussed earlier. In Jordan v. Hepp, the defendant was tried in 2003.103 In closing arguments to the jury, the prosecutor violated ethi-cal obligations and a basic rule of trial practice by vouching for the state’s witnesses.104 Thirteen years later, in 2016, the appellate court targeted the defense lawyer: “We instruct the district court to hold a hearing . . . to allow the parties to present evidence about whether [the defense lawyer] had a strategic reason for failing to object to the prosecution’s improper vouching for the witness’s credibility.”105
100. See Andrew Beaton, After the Infamous Blown Call in New Orleans, the NFL Makes Penalty Reviewable, WALL STREET J. (Mar. 27, 2019), https://www.wsj.com/
articles/after-the-infamous-blown-call-in-new-orleans-the-nfl-makes-penalty-review able-11553697887 [https://perma.cc/V3KQ-H5J2].
101. See Cicchini, supra note 62, at 921.
102. The defense lawyer will usually be subpoenaed to testify as to the reasons for his or her decisions made years earlier at the trial. See Richard Van Rheenen, Inequi-table Treatment of Ineffective Assistance Litigants, 19 IND. L. REV. 159, 160 (1986)
(“Obtaining an evidentiary hearing is critical to the success of most ineffective assis-tance claims.”).
103. Jordan v. Hepp, 831 F.3d 837, 841 (7th Cir. 2016).
104. Id. at 846 (discussing “the rule providing that a prosecutor may not urge a jury to base its decision on information known to the prosecutor but not presented at trial”). In addition, the case was initially tried in a Wisconsin court, and one of the state’s applicable ethics rules is that a lawyer shall not, “in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to . . . the credibility of a witness . . . .” WIS. SUP. CT. R. 20:3.4(e). Further,
the state’s ethics rule on the special responsibilities of the prosecutor anoints him or her as “minister of justice,” a title that “carries with it specific obligations to see that the defendant is accorded procedural justice . . . .” WIS. SUP. CT. R. 20:3.8, ABA cmt.
1.
(From the defendant’s perspective, of course, this thirteen year delay gives new meaning to the phrase “justice delayed is justice denied.”) Second, as explained earlier, most of the time there is a reason for defense counsel’s failure to object to the prosecutor’s cheating or the judge’s erroneous trial rulings.106 As a result, the court will not find defense counsel deficient and the defendant’s IAC claim will fail. But what if, at the time the government committed misconduct at trial, the defense lawyer was focusing on his or her own job duties instead of closely monitoring the prosecutor or judge? Or what if, as was likely the case in Jordan, it is impossible for counsel to remember what he or she was thinking during that one split second thirteen years earlier?
In cases like this, there is a much greater chance that defense coun-sel—who is often personally named in the appellate court’s published opinion—will be branded as deficient and, therefore, ineffective for the entire legal community and prospective clients to see.107 Given today’s easy access to information through the internet, including so-cial media and attorney-rating websites, this type of unfair branding could be career threatening for a defense lawyer.
Third, the court finding a defense attorney ineffective could lead to the reporting of an ethics violation. That is, except in cases where the judge actively prevented the defense lawyer from being effective,108 a finding of ineffectiveness is usually strong evidence of the defense lawyer’s failure to comply with the ethics rules—typically, the rules requiring competence and diligence. As one appellate court acknowl-edged when identifying and discussing an attorney’s unethical behav-ior at trial, courts are obligated to report such misconduct.109 “Therefore,” the court held, “we direct the clerk of this court to send a copy of this opinion to the Office of Lawyer Regulation for any action it deems appropriate.”110
Fourth, regardless of whether the court actually finds the defense attorney ineffective or in violation of the ethics rules, merely being accused of such things can impact the attorney’s ability to obtain work. In Wisconsin, for example, the Office of the State Public De-fender (“SPD”) certifies lawyers for case appointments by the agency.111 The SPD’s application specifically asks, “Have you ever been the subject of a claim of ineffective assistance of counsel?”112
106. See supra notes 88–91 and accompanying text. 107. See, e.g., Jordan, 831 F.3d at 850.
108. See, e.g., Oade v. State, 960 P.2d 336, 338 (Nev. 1998) (“Oade argues that the district court judge made inappropriate comments and threats and assessed repeated fines, which . . . limited the defense’s ability to present a case . . . .”).
109. State v. Mayer, 2014 WI App 110, ¶ 19, 357 Wis. 2d 722, 855 N.W.2d 904. 110. Id.
111. Assigned Counsel Division: General Certification Application, WIS. ST. PUB.
DEFENDERS (Feb. 7, 2010), https://www.wispd.org/images/ACD_Forms/General%20
Of course, if the answer to the question did not affect the SPD’s decision to certify a lawyer, the SPD would not ask the question in the first place. Similarly, if a finding of ineffectiveness is what mattered, the SPD would not ask whether the attorney has merely “been the subject of a claim” of ineffectiveness.
Fifth, a finding of IAC “may expose an attorney to financial liabil-ity.”113 For example, in Iowa, a statute “specifically contemplates civil financial liability for appointed counsel when: (1) a court finds that a conviction occurred because of [IAC]; and (2) the ineffective counsel is the proximate cause of the damage.”114 In addition, states may also recognize “a common law legal malpractice claim that can be asserted against any attorney . . . so the potential for civil liability as a result of [IAC] claims is certainly not limited to appointed counsel.”115
In sum, applying Strickland to situations for which its framework was not intended—specifically, using it to blame defense counsel for the prosecutor’s or judge’s misconduct—not only makes defense counsel’s job far more difficult, but also creates long-lasting, serious consequences for the defense lawyer while the government agent who committed the misconduct typically skates free.
C. Harm to the System
Holding defense lawyers accountable for prosecutorial and judicial misconduct also harms the criminal justice system more generally. First, IAC claims usually require a post-conviction evidentiary hearing for the defense lawyer to testify.116 The reason is that “[a] fair assess-ment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circum-stances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.”117 As discussed earlier, this takes a great deal of the defense lawyer’s time and energy. But he or she is not the only person involved in the process, and IAC hearings consume public resources as well.118
Second, filtering prosecutorial and judicial misconduct through
Strickland’s IAC framework lets prosecutors and trial judges off the hook for their own misconduct, thus creating perverse incentives and even encouraging further misbehavior.119 This blame-shifting is one reason that appellate courts, when they eventually grow tired of
hear-113. Woodruff, supra note 36, at 1833. 114. Id.at 1833–34.
115. Id. at 1834.
116. See Van Rheenen, supra note 102, at 160.
117. Strickland v. Washington, 466 U.S. 668, 689 (1984) (emphasis added). 118. See infra Part VII.
ing appeals rooted in acts of prosecutorial misconduct, pathetically grovel to prosecutors, all but begging them to stop cheating at trial.120 For example, after allowing repeated acts of prosecutorial miscon-duct without consequence, one appellate court again let the prosecu-tor off the hook while lamenting: “[I]t is disheartening, to say the least, to learn that [the prosecutor] takes ‘pride’ in our admonitions, apparently because we did not reverse the judgment rendered. We most earnestly urge counsel to reconsider her approach . . . .”121 One judge described such begging as undesirable “helpless piety.”122
Of course, there is no incentive for cheating prosecutors to “recon-sider [their] approach” when, under Strickland’s IAC framework, it is defense lawyers who are held to answer for their reaction to
prosecutorial misconduct, rather than prosecutors being held to ac-count for their commission of the misconduct in the first place.123
Third, it is also likely (though difficult to quantitatively verify) that the public loses confidence in, and respect for, the criminal justice sys-tem when judges are ignorant of the law and prosecutors are law-less.124 Here, once again, an analogy is useful: professional wrestling is considered pure entertainment, rather than a legitimate sport, for good reason.
Fourth, the Supreme Court in Strickland even warned, long before courts expanded the two-part test to hold defense lawyers accountable for the government’s misconduct, that “intrusive post-trial inquiry into [defense] attorney performance” would be detrimental.125 Such in-quiries could “dampen the ardor and impair the independence of de-fense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.”126 These concerns increase, of course, when defense counsel is put under the microscope and criticized for his or her decision-making when faced with an un-ethical prosecutor or judge. This is a level of intrusiveness the Su-preme Court could not even imagine when it decided Strickland.
120. SeeUnited States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting).
121. People v. Congious, No. B0202709 (Cal. Ct. App. Dec. 4, 1987). 122. Antonelli Fireworks Co., 155 F.2d at 661.
123. Cicchini, supra note 62, at 894.
124. Geoffrey P. Miller, Bad Judges, 83 TEX. L. REV. 431, 431 (2004) (With regard
to “incompetent” judges, “These bad judges terrorize courtrooms, impair the func-tioning of the legal system, and undermine public confidence in the law.”); Kenneth Rosenthal,Prosecutor Misconduct, Convictions, and Double Jeopardy: Case Studies in an Emerging Jurisprudence, 71 TEMP. L. REV. 887, 958 (1998) (With regard to
prosecutorial misconduct, “[T]here is an incalculable cost in damaged integrity [to the judicial system itself] that may be difficult to repair, and which affects the social fabric in a manner that implicates more widespread consequences.”).
VI. LEGAL REFORM: ALLOCATING BLAME
Legal reform for addressing IAC claims—when such claims are rooted in prosecutorial or judicial misconduct rather than true de-fense-lawyer error—must focus on allocating blame to the offending prosecutor or judge.127 Defendants’ appellate lawyers and the courts have the ability to reform the status quo—each group in its own way.
A. Using Plain Error
When a defendant’s appellate lawyer sees prosecutorial or judicial misconduct in the trial transcript, the knee-jerk reaction is to invoke
Strickland’s two-part IAC framework and blame the defense lawyer for failing to object to the prosecutor or educate the trial judge. That is good for the unethical prosecutor and judge, as they are let off the hook for their unethical behavior. However, it is bad for the defense lawyer, and it may actually be bad for the defendant as well.128 The appellate lawyer may not be doing the defendant any good by at-tempting to shift blame to defense counsel, as Strickland’s IAC frame-work may actually be more difficult to satisfy than the plain error standard or other standards.
First, recall that IAC claims rarely succeed.129 And those that do succeed are likely based on true defense-lawyer errors—such as, for example, failing to investigate the case or call a witness—rather than on the counsel’s failure to monitor the prosecutor or educate the trial judge during the heat of battle.130 As discussed earlier, the primary reason for defendants’ low success rate is the built-in explanation for
127. Cicchini, supra note 62, at 920.
128. See Woodruff, supra note 36, at 1835 (urging the adoption of a plain error framework because Strickland’s IAC framework is of little help to defendants and is unfair to defense counsel).
129. Mayeux, supra note 15, at 2162; Bibas, supra note 86, at 1; Kirchmeier, supra note 15, at 438.
130. Often, even truly deficient performance by the defense lawyer is not enough to show prejudice. And if a court refuses to reverse a conviction when “the defendant’s lawyer was asleep, drunk, unprepared, or unknowledgeable,” it is unlikely to do so when the lawyer merely fails to lodge an objection on the spur of the moment and in the heat of battle at trial. Bibas, supra note 86, at 1. In a recent, extreme case of attorney misconduct, the Supreme Court of Wisconsin disciplined defense counsel for multiple ethics violations, including the failure to maintain his law license during the representation. In addition, the attorney’s other ethics violations “prevent[ed] [the defendant] from adequately understanding and participating in his own defense . . . .” State v. Cooper, 2019 WI 73, ¶ 9, 387 Wis. 2d 439, 929 N.W.2d 192. Nonetheless, when it came to finding deficient performance under Strickland, the court refused. “It’s almost like an Einsteinian multiverse. In one universe the lawyer’s misconduct is so awful that he receives consecutive license suspensions. In a parallel universe, where a criminal defendant’s due process rights are stake, the same conduct is not bad enough to grant relief.” SCOW: Professional Misconduct Warranting Suspension Does Not Demonstrate Ineffective Assistance of Counsel, ON POINT (June 24, 2019), http://www
